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Oct. 7 --Among the Occupational Safety and Health
Administration's various directorates, the government shutdown is likely to have
its biggest effect on enforcement, especially in the construction sector, former
agency staffers say.

“The whole point of targeting is to make sure
inspections are being done when there are the most people on the site,” Adam
Finkel, who headed OSHA's health standards division from 1995 to 2000, told
Bloomberg BNA Oct. 7. “So if there's a big project with problems, and OSHA can't
get there, and by the time they do [the workers] are painting the building,
that's a real missed opportunity.”

The enforcement division also will be
unable to answer employer queries about how OSHA interprets its standards, said
Celeste Monforton, who worked in OSHA's Office of Legislative Affairs during the
most recent government shutdown in 1995.

Worse, a shutdown of any
significant length will create a backlog of enforcement cases that staffers will
have to work through once they return to work, Gabe Sierra, former OSHA chief of
staff under President George W. Bush, told Bloomberg BNA Oct. 4.

'A Very
Precarious Situation.'

As of Oct. 1, OSHA has furloughed 90 percent of
its inspectors, according to a Sept. 10 memo by agency head David Michaels. Only enough staff
remain now to respond to serious emergencies .

“It puts the agency in a
very precarious situation,” Sierra said.

Monforton also recalled that,
during her tenure, an office in the enforcement directorate that was responsible
for answering inquiries from employers about how OSHA interprets its standards
accumulated a huge backlog of letters during the shutdown.

“Even during
regular times there would be stacks and stacks of these letters, and there was
already a slim staff that was responsible for those,” Monforton said. “That was
during normal times. In a typical agency, you want to get a response out in a
month or so, but these were sometimes already six months old. They had a really
bad backlog.”

Monforton was sent home during the 1995 shutdown. By the
time it ended, she had moved to the Mine Safety and Health Administration.

Standard-Setting Grinds to a Halt

The outlook is somewhat brighter
for OSHA's standards directorate, sources say, largely because the directorate
does not now appear to be overwhelmed with work.

That was not the case
when the 1995 shutdown hit, at which time OSHA was working on new rulemakings on
methylene chloride and powered industrial trucks, along with revisions to the
agency's respiratory protection, confined space and grain handling
standards.

“When big rulemakings are going on in the agency, there's just
a lot of work to do,” said Monforton, now a lecturer at George Washington
University. In 1995, “there were comments we were going through, substantive
comments. And it's not unusual during OSHA rulemakings to get inundated with
letters, a lot from members of Congress, so we were preparing responses to
those.”

Currently, however, OSHA's highest-profile rulemaking, its silica
dust rule, is still in the early phases of the comment period, which does not
expire until Dec. 11. Prominent industry and labor groups typically do not file
their submissions until the comment window is about to close, Monforton
said.

Sierra agreed, saying, “The agency is in the posture now where
they're waiting for comment. Until then, they're basically twirling their
thumbs, waiting.”

Another Threat: Scientific Advances

Nevertheless, other regulatory work, such as preparations for the silica
public hearings, scheduled to start on March 4, or the injury and illness
prevention program small business review panel, have almost certainly come to a
standstill due to a lack of staff, Monforton said, noting the directorate's
skeleton staff during the 1995 government closure.

During that period,
Finkel was the only staffer in OSHA's standards division who remained on the
job.

Another risk of the shutdown is that opportunities for scientific
research may be missed while OSHA or National Institute for Occupational Safety
and Health staffers are sidelined. That didn't happen during the 1995 shutdown,
but there's no reason it couldn't happen now, Finkel said.

“We were
fortunate [during the last shutdown] that there wasn't a huge event in the
science,” he said. “But if the whole scientific community is talking about
things that are fresh in people's minds, or there's a meeting and you're not
allowed to go to it, that can be disruptive.”

Similarly, if a physical
event happens that OSHA staffers cannot visit in the field, evidence that might
be important to development of standards could be lost because samples would not
be collected and interviews not conducted in real time, according to Finkel.

For example, NIOSH researchers were on hand to collect the health histories
and tissue samples of workers exposed to crude oil and chemical dispersants
during the 2010 Deepwater Horizon oil spill. The agency also monitored those
workers for respiratory, immunological and neurobehavioral effects.

“Scientific, evidentiary issues could get lost,” Finkel warned.

Recovery Time Equivalent to Shutdown Time

When the shutdown ends and
OSHA employees returns to work, they can expect to have to spend some time
getting back into playing shape, Monforton said.

“When you're in the
midst of whatever project you're working on, you're so focused on that work,”
Monforton said. “When the ideas are coming, you've probably had meetings with
the people you need to talk to, whether they're internal or external, and that
all comes to a halt. You can't just then pick up on day one when you come back,
because you have to reschedule those meetings and make sure those people are
still engaged. It's not just that you're coming back to the work on your desk.
There's new work that you need to do because there was a shutdown.”

Finkel estimated that OSHA's standards work can be expected to be set back
for a period roughly as long as the shutdown itself--a significant impact, but
not an insurmountable one, as has been claimed by some past administrations, he
said.

Former Employees Praise Agency's Professionalism

For
example, for years after the 1995 shutdown, OSHA officials blamed the government
closure when asked why the agency had been so slow to issue rules. In 1998, OSHA
invoked the shutdown in a lawsuit brought by the Oil, Chemical and Atomic
Workers Union and Public Citizen to compel it to issue a hexavalent chromium
standard.

“There was a month or six weeks of time lost, and probably an
equal amount of time lost just getting back and catching up with what had
happened,” Finkel said. (The 1995 shutdown actually lasted 21 days.)

However, OSHA staffers are skilled and able professionals who should be able
to recover reasonably quickly from the disruption to their work, said Sierra,
who compared shutting down OSHA to putting a computer into hibernate mode,
rather than turning it off.

“When everybody comes back, they're going to
have to catch up,” he said. “It's almost like everybody went on vacation for two
weeks. But these are professionals. They'll have one or two days of people just
getting reacclimated to where the stapler is, and eventually I would anticipate
relatively quickly they'll be able to get up and running.”

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